As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Panel remarks by Stephen Lewis, Co-Director of AIDS-Free World, delivered during theInternational Forum on MDG-6  in Eastern Europe and Central Asia
Moscow, Russia, October 11, 2011
Two weeks ago, the Supreme Court of Canada—my country—rendered a unanimous decision to keep open and functioning the only supervised drug injection facility in the country, called Insite. It had been a battle that raged over several years. The Federal government was totally opposed to the continuation of Insite. The Supreme Court said the Federal government was wrong.
The judgment read, in part: “The experiment has proved successful. Insite has saved lives and improved health without increasing the incidence of drug use and crime in the surrounding area … there have been no discernible negative impacts on the public safety and health objectives of Canada during its eight years of operation.”
The decision amounts to a sweeping endorsement of ‘harm reduction’.
Just three months earlier, in June of this year, the Global Commission on Drug Policy, chaired by the former President of Brazil, Fernando Cardoso, produced its report. It branded the war on drugs a complete and colossal failure without a single redeeming feature.
Their report read, in part: “End the criminalization, marginalization and stigmatization of people who use drugs but do no harm to others … Offer health and treatment services to those in need … including not just methadone and buprenorphine treatment, but also the heroine-assisted treatment programs that have proved successful in many European countries and Canada. Implement syringe access and other harm reduction measures that have proven effective in reducing transmission of HIV … respect the human rights of people who use drugs.”
It is a matter of both irony and tragedy that the Russian Federation pays virtually no attention to any of this. The Russian Federation is, quite simply, on the wrong side of history. And because Russia is on the wrong side of history, this country—as Michel Sidibe, the Executive-Director of UNAIDS pointed out yesterday—this country has one of the most frightening increases in the rates of HIV/AIDS in the world.
The numbers are driven by injecting drug use. This is the only part of the world that shows such a dramatic spike in HIV. The Commission on HIV and the Law will find it hard to believe that the law in Russia is being used to enhance AIDS rather than to curtail it.
The work and the declarations of the United Nations show us what the policies should be; policies rooted in human rights principles. In the Russian Federation, we must do what we can, as an immediate priority, to ensure that people who inject drugs do not get sick and die of HIV. As an urgent matter—indeed, as an emergency matter—they should have access to clean injection equipment and to proven methods of treatment of drug dependence, especially the kind that enables people to stop injecting. Through expansion of sterile needle and syringe exchange programs, and methadone or similar therapy for heroin dependence, countries across Europe, including some in the former Soviet sphere, have averted millions of cases of HIV transmission and saved millions of lives. The solution could not be plainer.
It is heart-breaking and indefensible, therefore, that with nearly two million people who use opiates, most of whom inject, the Russian Federation still does not ensure access to these simple and low-cost services and, much worse, uses the power of the state—that is to say, the power of the law—to erect barriers to their provision.
I will never understand why, in 2011, the Russian Federation continues to ban the medical use of methadone, after almost 50 years of successful use of medication-assisted opiate therapy that has saved and stabilized millions of lives internationally. How is it possible for Russian health officials to continue to slander methadone when mountains of scientific evidence from international and regional experts has persuaded most of the rest of the world of its legitimacy?
These days, everyone demands “evidence-based” interventions. There could be no greater evidence-base than the medical use of methadone. But it’s outlawed in the Russian Federation. Yet, thousands are dying every year from preventable injection-related overdose and preventable HIV and hepatitis.
I appeal to the President and Prime Minister of the Russian Federation (and the future President and Prime Minister) to end this unconscionable denial of the rights of injecting drug users. I’m reminded of the denialism of the former President of South Africa, Thabo Mbeki, who allowed hundreds of thousands of his citizens to die of AIDS on his watch because he didn’t believe in antiretroviral drugs. There are thousands dying here of AIDS-related illnesses because of a similar pattern of denialism. It makes absolutely no sense. It’s outrageous.
At some point, reasonable people must surely recognize that injecting drug use is an illness, a public health issue, not a target for punitive attack, or incarceration, or assault by the police. The mentality is profoundly warped … it’s as though injecting drug users weren’t human, and this environment of personal malice turns into the malice of the state.
I come here in my capacity as a member of the Global Commission on HIV and the Law. Like my fellow Commissioners, I recognize that there are limitations to what the law can achieve in respect of HIV. But examining the importance of law in the HIV response reminds us that people have a legal and human right to certain information and services and it is the obligation of governments to provide them. The countries where there is extensive drug injection, but virtually no HIV transmission linked to drug injection, have established legal protections for life-saving HIV prevention services.
In the Russian Federation there is no legal protection for saving the lives of people who inject drugs. And that startling element of negligence is compounded by another lapse: the flouting of due process and the rule of law when it comes to drug offences. Members of the Commission were shocked and dismayed to hear from civil society representatives at the Eastern European regional dialogue in May that people who use drugs are such easy targets for police extortion and abuse in Russia. Drug users and sex workers represent a second income for the police, so normal is the practice of extorting money from them during arrest and detention. The absence of fair investigation when faced with a trial was also frequently mentioned. What’s more, in the custody of the state, people who live with addiction are vulnerable to being interrogated and coerced to make confessions when they are sick during the trauma of withdrawal.
In the Russian Federation, people who are convicted even of relatively minor offenses, including possession of drugs for personal use, serve disproportionately harsh prison sentences or long periods in pre-trial detention, often in inhuman conditions where basic health, HIV prevention services and drug treatment are unavailable. And then there’s the registry: once registered as drug offenders, people are not only the easiest targets for police abuse, but they go through life with a black mark, a scar that compromises employment and social support. It is no wonder that when faced with a lethal overdose, people who inject drugs, or friends who are with them, may actually fear calling the police or an ambulance for help.
These allegations will of course be denied by the authorities. And after all, I am merely a visiting Commissioner. But I’d like to make something clear. In my time as the UN Envoy on AIDS in Africa, and in the four years since, as Co-Director of the advocacy organization AIDS-Free World, I have learned that what is said by the people living with AIDS, or those who belong to high-risk groups—men who have sex with men, sex workers, injecting drug users, victims of sexual violence—is always, but always, more reliable and more honest than what is heard from governments. And the written and oral submissions we have received at the regional dialogues are, in my submission, absolutely to be believed.
They are often, as was the case in the Eastern European dialogue, incomparably depressing. Imagine taking a child away from its mother solely because she’s a drug user, and possibly HIV-positive. Imagine that the right of the state to remove the child is ordained by law. Is there anyone who can’t see the need for a Commission on HIV and the Law? There have apparently been cases where abortion has been forced for pregnant women who are drug users. In most countries of the world, pregnant women and women who have children are at the head of the line for methadone and other treatments if they need them in order to stabilize their lives, have good outcomes of pregnancy, be good parents.
When you have a conspiracy of hate directed against a vulnerable group, you can almost be certain that they’ll go underground, they won’t get tested, they won’t turn to prevention or treatment or care, and your prevalence rates for AIDS will soar through the roof.
Interestingly, the situation in the Russian Federation also shows both the importance of law on the books and the problem of inadequate implementation of good law. Russia’s 1995 law is a fine example of legislation that lays out extensive protection against discrimination based on HIV status, and a commitment to the provision of health services to people living with HIV. Yet, both WHO and UNAIDS have concluded that although 85% of people living with HIV in the Russian Federation were infected through injection, only 20% of the people receiving antiretroviral therapy are people who use drugs.
That’s quite a policy: first you demonize them, then you let them die.
There is also the question of resources. With the end of financing from the Global Fund, the amount of money available for prevention for injecting drug users is negligible. The NGOs who managed three programs for the Global Fund did the heavy lifting when it came to people who use drugs and are struggling with HIV. What is to become of those programs? How will the gap be filled? There is a huge crisis building in the Russian Federation and it is as though no one wants to acknowledge it until it explodes. One might ask, as so many are asking, where in the world is the Ministry of Health and Social Development? If you want an Achilles Heel, most of the activists will point to the Ministry of Health.
I’ve left a lot out of these remarks. I haven’t raised the drug stock-outs and shortages, the high price of drugs, the terrifying co-infection levels of HIV and TB, the unnerving extent of chronic viral hepatitis B and C, the desperate situation for the prison population, the appalling indifference to drug users who are women and HIV-positive … the list is endless. But I wanted to concentrate, in narrow and focused terms, on the worst aspects of the predicament for injecting drug users overall, in the Russian Federation.
I can’t imagine that any country wants to be known as the only country on the planet where the rate of AIDS infection is sky-rocketing. But that’s what’s happened to Russia. If it is to turn around, then there will have to be a monumental shift in the attitude to injecting drug use and to the laws that do so much damage. Is that possible? I suppose there’s a corollary: if there’s no shift in attitude, and no shift in the laws, Russia faces a looming human catastrophe.
Sincere thanks to Joanne Csete, PhD, Associate Professor of Clinical Population and Family Health at the Mailman School of Public Health, Columbia University, and member of the Technical Advisory Group to the Global Commission on HIV and the Law, for her significant assistance with the content of this speech.
 Millennium Development Goal 6 calls on governments to have halted and begun to reverse the spread HIV/AIDS by 2015.